Challenging a Performance Improvement Plan

By
The Solomon Law Firm, PLLC
|November 16, 2012

A Not Fully Successful Rating and Performance Improvement Plans

Poor performance is a legitimate, non-discriminatory reason for an Agency
to propose a reassignment, demotion or removal from federal service. When
your performance rating falls below the acceptable standard for your position,
the Agency must provide you with a meaningful opportunity to improve before
they can propose an adverse action based on poor performance. In order
to meet this obligation the Agency will implement a Performance Improvement
Plan or Performance Improvement Period (PIP). A PIP is a commonly used
administrative tool to provide an employee with notice that performance
is not fully successful. The PIP will outline a plan for improvement in
the critical elements, sometimes referred to as core elements that were
deficient. Often times, a supervisor will sign the PIP and will outline
various training opportunities for an employee.

A PIP, with limited exception, is a prerequisite to issuing a notice of
proposed removal for deficient performance. The PIP is designed to provide
a federal employee with a meaningful opportunity to improve. In order
for the opportunity to improve to be "meaningful" the employee
must be made aware of several things when being placed on a PIP. First,
the Agency must make it clear to the employee that they have observed
performance deficiencies in critical elements of that employee's position.
The employee must then be told specifically what they must do in order
to achieve a successful rating; the standards by which their improvement
will be evaluated or measured; what guidance, training or assistance management
is willing to provide; and the consequences if the employee fails to improve
at the conclusion of the PIP. Additionally, the employee should be made
aware of the length of the PIP, including the start and end date or any
extensions thereof. Assuming you successfully improve under a PIP you
will be notified by the Agency and should resume employment without further action.

In the event that the Agency determines that you failed to improve or correct
the performance deficiencies identified in the PIP, it is likely that
your employing federal agency will propose your removal from federal service.
A removal from federal service is an independently appealable action that
you can appeal to the Merit Systems Protection Board, also known as the
MSPB. A removal from federal service for poor performance is usually brought
under Chapter 43 of the United States Code. However, it is possible to
remove an employee from federal service under Chapter 75, which is more
commonly used in instances of misconduct. Regardless of whether or not
you feel you truly failed to improve under the PIP, there are a variety
of procedural mistakes the Agency could have made in the implementation
or execution of your PIP and/or in the issuance of the notice of proposed
action. An attorney who is experienced practicing before the MSPB is in
the best position to help you identify procedural errors that may have
been made.